Re: what are orphan works?

From: "Robotech_Master"
> On Sun, Sep 27, 2009 at 9:17 AM, joseph harris <[email protected]> wrote:
> 
>> I am genuinely puzzled at what exactly people do expect to find that is of value. I'm not asking for either justification of the general idea, nor of the view opposing that. I don't think I've seen a fistful of actual examples, or even genuine areas that are going to produce this 'great benefit'.
> 
> Well, I'll use an example concrete to me, then.
> 
> I have a comb-bound manuscript that my great-grandfather wrote, called
> "The Hegira of the Hupp", recounting his trip with his entire family
> (including my 3-year-old grandfather) from Oklahoma to New York and
> back in a Huppmobile over the course of several months back in the
> 1920s. There were no interstates back then, and in fact relatively few
> paved roads of any kind. Can you imagine driving across the country on
> dirt roads?
> 
> Very interesting book, and surely of great sociological and cultural
> value to publish. I'd like to scan it and offer it as an e-book to
> anyone who was interested.
> 
> The thing is, my great-grandfather wrote this book originally as a
> series of columns for a newspaper that went out of business decades
> ago.
> 
> Who owns the copyright? Did my great-grandfather keep rights to the
> columns or were they work-for-hire? If they were work-for-hire, were
> the copyrights renewed after 28 years? If they were renewed, with the
> paper out of business decades ago, who owns them now? How could I even
> find out? If my great-grandfather did keep the rights, what member of
> his family did they devolve to?
> 
> In this situation, I expect I could probably just go ahead and publish
> the work, as the copyrights are so lost that there would PROBABLY be
> no claimant of ownership. But there's an infinitesimal chance that
> someone MIGHT pop up and object, and if they wanted to object in the
> courts I would have no way to defend against them. And so this
> fascinating work that I would love to share with historians stays
> locked up in its comb binding.
> 
> But even with that, it doesn't matter so much; the paper isn't going
> to disintegrate and if I had to wait until the Bono-extended copyright
> term expires, I technically could. But what really gets me is that
> there are films from the early era of cinema that are decomposing in
> their cans that restoration groups would love to get their hands on
> and preserve but with their legal ownership up in the air they can't
> take the risk. Valuable pieces of our heritage are literally rotting
> away because nobody knows who owns them.
> 
> I'm sure there are lots of other stories about people wanting to
> republish or remix orphaned works but not being able to due to fear of
> legal action.
> -- 
> Chris Meadows aka         | WWW: http://www.terrania.us      | Somebody
> Robotech_Master           | ICQ: 5477383  AIM: RoboMastr     | help, I'm
> [email protected] | Skype, LJ-Gizmo: Robotech_Master | trapped in
> [email protected]        | Facebook: Robotech.Master        | a sig file!

Chris,

This is a very strong case for an easier way to discover where rightsholders are, and that would include details of contracts I'm afraid. However, your personal example does not justify the kind of legislation that is in prospect [possibly by a back door] which actually endangers a great deal of work that not only is not in any sense an orphan, but may actually be being prepared for publication.

Let me offer two lines of discussion. The first about your MS, the other about your last paragraphs.

Clearly you are potentially the heir and therefore would be the rightsowner. Your intent is clearly within your purview so long as no licences exist or, if extant, do not affect publication as a book.

Now, up to comparatively recently the custom for journals was to request licences that were limited. These would refer to region, originality and range of journals. Thus, I suspect, these columns were offered for the State [maybe US or N.America], 1st publication rights, daily newspapers [or weekly]. There may have been reprint rights as well, but those would not affect any  use by the owner.

Claims for all rights by newspapers really ocurred when owners and publishers ceased to be newsmen and became businessmen, financiers and bean counters. And, of course, when rights in other mediums began to be real and to have potential. 

There is in fact a case on articles in papers and whether freelances, in particular, have been short changed; it is reaching a peak now after some years!

You would need to research a bit on when the change took place in the US, but I can more or less guarantee that the rights asked and granted were confined to original publication only.

I presume you know where the papers were, and your local librarian will be able to help sort this out. It may even be worth contacting a journalists' association, which may well have the information on record.

As to your own family, unless your father [and grandfather] had gifted them in a will the writings would follow normal lines of succession. If you are the eldest son of an eldest son the rights are yours. [Unless American law differes from most western inheritance laws].

Frankly I cannot see how anyone else could have the slightest claim; unless there was a co-author. Family matters I leave to you ;-).

Yours is in no way an orphaned work so far as I can see. Nor would any similar work be in a similar situation. To extrapolate from your one example has then, in my view, nothing to do with orphan works.

Now when we come to films that differs from word publishing. There are many important differences, one of which is that there are countless rights owners in each work. This makes sorting anything out difficult even if the film is not orphaned!

There is a case here for a government body charged with saving film, without regard to return. 

That is to say preserving the film be done as a public service to the heritage, leaving the sorting of ownership to be done by the interested parties.

With the films beyond a certain age, I guess from a date somewhere in the 20s, they might well be saved and brought into the public domain if no claim on them can be found.

But again that would be quite different from offering a power to all and sundry - especially big and powerful players - to take anything they fancied and defy owners to sue.

Joseph

Joseph Harris  -  Debt Control Man
author: Control Your Debt Crisis on Your Own Terms
blog: http://debtcontrolman.wordpress.com
http://www.controlyourdebtcrisis.co.uk
debt dictionary: http://www.controlyourdebtcrisis.co.uk/debtwiki/



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